City of Athens v. Wolf

• Decision Date: 19 June 1974
• Docket Number: No. 73-526,73-526
• Citation: 38 Ohio St.2d 237,67 O.O.2d 317,313 N.E.2d 405
• Parties: , 67 O.O.2d 317 CITY OF ATHENS, Appellee, v. WOLF, Appellant.
• Court: Ohio Supreme Court

Page 237

38 Ohio St.2d 237

313 N.E.2d 405, 67 O.O.2d 317

CITY OF ATHENS, Appellee, v. WOLF, Appellant.

No. 73-526.

Supreme Court of Ohio.

June 19, 1974.

Syllabus by the Court

1. A college student residing in a dormitory room is entitled to protection, under the Fourth and Fourteenth Amendments to the United States Constitution, from unreasonable searches and seizures.

2. A police officer who is executing a search warrant may not extend his search to areas not specified in the warrant for the purposes of security unless he has reasonable grounds to believe that his safety is endangered.

Appellant, Clifford A. Wolf, was charged with violating Section 93.09 of the Athends Municipal Code, viz., possession of a hallucinogen. He pleaded not guilty to the charge, requested a jury trial, and, on January 19, 1972, he was convicted of the offense. Imposition of sentence was stayed pending this appeal.

The charges against Wolf arose out of a raid, conducted by the Athens Police Department, on Room 318 in Bromley Hall, an Ohio University dormitory. On September 28, 1971, at approximately 7:30 p. m., three policemen entered that room, pursuant to a search warrant, and confiscated various drugs and narcotics paraphernalia. The suspects found in Room 318 were arrested.

At the time of the raid Wolf was in his room, Room 317, as was a nonresident friend of his. Wolf's roommate was not present.

Rooms 318 and 317 form a suite, connected by a common bathroom. Shortly after the police entered Room 318, one of them, Patrolman Hutchins, was instructed to check the bathroom. Hutchins testified that the door leading from the bathroom into Room 317 was open, and so he walked through that room into 317 where he observed the appellant, some ten feet away, quickly conceal something behind his back. Fearing that the unknown object might be a gun, Hutchins testified that he ordered both occupants of Room 317 'to hold it right there and come here, and drop whatever they had on the bed as they walked towards me, which Mr. Wolf did.' Upon examination, the object was discovered to be a pipe containing hashish. Hutchins then took appellant, and the other suspect, into Room 318 where they were advised of their rights and searched.

Appellant's pre-trial motion to suppress the pipe and hashish was overruled for the reason that 'the officers entered the room of defendant legally through an open door and any evidence found in plain sight is admissible.' Upon appeal, the Court of Appeals affirmed appellant's conviction, overruling his assignment of error as to the admission in evidence of the pipe and hashish. ¹

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Michael Nolan, Pros. Atty., and Michael Ward, for appellee.

Alan I. Goodman, Cleveland, for appellant.

STERN, Justice.

The key question presented by appellant's motion to suppress is whether Officer Hutchin's original entry into Room 317 was lawful.

The Fourth Amendment to the United States Constitution insures the right of people to be secure in their persons, houses, papers and effects, free from unreasonable searches and seizures. All evidence obtained by searches in violation of the Fourth Amendment is inadmissible in state courts. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Searches conducted outside the judicial process, without a warrant, are per se unreasonable, subject to a few specifically established exceptions. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, and cases cited therein.

To apply the above authorities to the present case we must make a series of preliminary determinations: (1) Was appellant, in his dormitory room, entitled to Fourth Amendment protection? (2) Was Officer Hutchin's intrusion into Room 317 tantamount to a search thereof? (3) If so, has the state carried its burden of showing that the officer's search falls within an exception to the Fourth Amendment's requirement of a warrant?

In Katz v. United States, at pages 351 and 353, 88 S.Ct. at page 511, the Supreme Court had occasion to discuss the scope of protection afforded by the Fourth Amendment, as follows:

'* * * the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. * * *.'

'* * * '* * * The government's activities in electronically listening to and recording petitioner's words violated the privacy upon which he justifiably relied * * * and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment.' (Emphasis added.)

Although few people who have ever resided in a college dormitory would favorably compare those living quarters to the comfort of a private home, a dormitory room is 'home' to large numbers of students who attend universities in this state. Because of the very nature of dormitory life, privacy is a commodity hard to come by, however much desired. Here, appellant shared his room with another student, and shared a common bathroom with other residents of the suite. Officer Hutchins testified that the door from appellant's room into the bathroom was open. ²

Under the circumstance, that fact can hardly be construed as an invitation to the general public to enter unannounced and at will. Appellant is entitled to more than a modicum of privacy in his dormitory room. As regards intrusions by law enforcement officials, we hold that appellant is entitled to Fourth Amendment protection. See Piazzola v. Watkins (C.A.5, 1971), 442 F.2d 284.

Throughout its brief the city refrains from characterizing Officer Hutchin's initial entry into Room 317 as a search. Because the officer's intrusion did directly impinge upon appellant's reasonable expectations of privacy in his room, and because this intrusion culminated in the seizure of evidence later used to convict appellant, we hold that a warrantless search and seizure within the ambit of the Fourth Amendment did occur.

The city argues that, under the 'plain-view' doctrine Officer Hutchins was justified in seizing the pipe which appellant was holding. This contention misconstrues the legal basis for the plain-view theory. In Coolidge v. New Hampshire (1971), 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564, the United States Supreme Court said:

'It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the 'plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.'

As stated in Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067: '* * * It has been long settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' (Emphasis added.)

In this case, Officer Hutchins was unable to see anyone in Room 317 merely by looking, from the bathroom, through the open door into that room. It was not until he was physically within Room 317 that appellant and his visiting friend were visible. Thus the plain-view doctrine is inapplicable here, where the lawfulness of the officer's intrusion itself is at issue. ³

That brings us to the third, and most important, of our preliminary determinations. The city had the burden of showing, by at least a preponderance of the evidence, that the search of appllant's room fits within one of the defined exceptions to the Fourth Amendment's requirement of a warrant. Chimel v. California (1969), 395 U.S. 752, 761, 89 S.Ct. 2034, 23 L.Ed.2d 685; Lego v. Twomey (1972), 404 U.S. 477, 488, 92 S.Ct. 619, 30 L.Ed.2d 618. The thrust of the city's argument is that Officer Hutchins was acting...